Oral Contracts to Make Wills

The vast majority of people have no idea that Virginia law recognizes oral contracts to make a will. As a result, people often miss out on asserting a claim to an inheritance because they didn’t know that they had one to begin with. This blog post provides an overview of Virginia law on this issue. I’ll follow-up this blog post with another one in the coming weeks about practical tips for how people can optimize their chances of winning on a claim for an oral contract to make a will.

Virginia has long enforced contracts to make a will, whereby a testator (the person making the will) enters into a contract with another person, with the testator agreeing to provide for him in his will, in exchange for the other party doing something for him. This most commonly arises in scenarios whereby people agree to care for aging testators in exchange for being provided for in their will. Also, married couples will occasionally contract to make “reciprocal wills” to ensure that neither person changes their will after the first one dies (so as to prevent the other one from disinheriting a child, for example). If a testator breaches a contract to make a will, then the aggrieved party has a right to file a lawsuit for breach of contract against the personal representative of the testator’s estate, seeking a monetary judgment.

In addition to enforcing written contracts to make a will, Virginia law will also enforce oral contracts to make a will. A person seeking to prove the existence of a valid oral contract to make a will faces some additional evidentiary burdens that a proponent of a written contract to make a will does not. First, the proponent of an oral contract needs to satisfy Virginia’s “Dead Man’s Statute” under Virginia Code Section 8.01-397.

In general, the Dead Man’s Statute prohibits someone from recovering a judgment based solely on his own testimony that a deceased person said something. Instead, there must be corroborating evidence to support it. There are a lengthy series of cases about how strong the corroborating evidence must be, and from whom it may and may not come, but for our purposes, suffice it to say that a proponent of an oral contract can’t simply walk into court and testify that “my dad said I’d get everything because I took care of him,” and, based on nothing else, prevail. You can probably see the rationale for the Dead Man’s Statute: without it, large numbers of dishonest people would be tempted to falsely testify that their deceased parent promised to leave them their entire estate.

Second, the oral contract must be proved by clear and convincing evidence. This is a higher evidentiary burden than the comparatively modest standard of a preponderance of the evidence (that only requires proof greater than 50%).

Third, the terms of the agreement must be certain and complete. In other words, a party can’t merely claim that a testator promised that he’d “provide for him” without any further details. Instead, a party seeking to prove an oral contract must provide details as to specifics.

Finally, where an oral contract to make a will involves real estate, the person seeking to prove the existence of the oral contract must also overcome Virginia’s statute of frauds, contained in Code Section 11-2. The statute of frauds requires that all contracts for the sale of real property must be in writing, but Virginia case law has held that an oral contract may be taken out of the statute of frauds if the person claiming the existence of the contract can prove that he partially performed under it. The Virginia Supreme Court has held that the person must establish: (1) that the oral agreement is “certain and definite in its terms”, (2) that his acts of part performance were done “in pursuance of the agreement proved,” and (3) that the agreement has been “so far executed that a refusal of full execution would operate a fraud” upon him. Va. Home for Boys and Girls v. Phillips, 279 Va. 279, 285 (2010).

Stay tuned for a follow-up blog post in the coming weeks, in which I’ll provide some practical tips and strategizes for how a person can optimize his chances of winning a claim for breach of an oral contract to make a will.

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About: Will Sleeth

Will Sleeth serves as the editor of the Estate Conflicts blog, and is the leader of the firm’s Estate and Trust Litigation practice area team, a nationwide team composed of over a dozen attorneys focusing on disputes involving wills, trusts, guardianships, conservatorships, powers of attorney, and elder law matters. Primarily based out of the firm’s Williamsburg and Richmond offices, Will represents clients all throughout Virginia and the nation. View all posts by Will Sleeth →